Long-running dispute over car lot sent back to hearing examiner

EVERETT — A Snohomish County Superior Court judge on Friday sent a long-running land use dispute in Arlington back to a hearing examiner, a move that leaves unresolved the issue of whether a car lot can be built in the flood plain of the Stillaguamish River.

The order also means that the dealership and the city of Arlington will have to do more work to show how development in the flood plain will affect flooding on nearby properties, including I-5.

At issue is whether Dwayne Lane’s Arlington Chevrolet dealership can move to a parcel it owns in the Island Crossing neighborhood, a mostly rural 110-acre tract next to I-5 that has been rezoned for commercial development.

The Stillaguamish is a flood-prone river, and a flood in December 2010 deluged local businesses and led to a temporary closure of I-5.

A hearing examiner initially approved Lane’s permit on condition that the 4.5-acre car lot not contribute to any net rise in water levels on neighboring properties during a major flood.

The examiner later loosened that restriction, however, to set a maximum water level rise of 2 inches during a 100-year flood.

The state Department of Transportation and Stillaguamish Flood Control District sued Lane Properties, the dealership’s development arm, as well as the city of Arlington, which issued the development permits for the lot, seeking to set the flood maximum back to zero, if not toss out Lane’s permit entirely.

Judge Anita Farris handed the state and the flood control district a temporary victory Friday when she ruled that the hearing examiner’s decision contained two key errors.

First, she said, the examiner was wrong in finding that Lane and the city’s compliance with one section of Arlington’s municipal code that allows a maximum of one foot of water rise automatically granted compliance with another section of the code that restricts flooding impacts to public health or neighboring properties. The dealership must show it complies with both sections of the code, Farris said.

Second, Farris ruled, the examiner was wrong in considering the effects of Lane’s development in isolation instead of as part of an overall assessment of the full 110-acre Island Crossing neighborhood, as if it were fully built out.

In remanding the case back to the hearing examiner, Farris did not rule on the initial flood-level limit set by the examiner’s decision, the crux of the original lawsuit.

Instead, she ordered the hearing examiner to base a decision on whether a fully developed Island Crossing, including Lane’s car lot, as well as any other future developments in the entire 110-acre tract, complies with the city’s code.

But Farris didn’t invalidate Lane’s development permit, either, instead saying the dealership and the city have not had an opportunity to present evidence to show if the car lot would be in compliance with the city code in the context of the full build-out of Island Crossing.

Lastly, Farris ruled against the flood district’s attempt to present the Oso mudslide, which occurred after the suit was filed, as new evidence, saying it was irrelevant to the facts presented so far in the case, and the hearing examiner would have to consider whether it should be included.

Tom Lane, president of Lane Properties, said that while he didn’t get the result he wanted, Farris’ ruling does shift the debate.

“The discussion now is a technical argument, an engineering argument,” Lane said. “I think now the discussion has moved to the ‘how,’ rather than the ‘if.’”

Arlington city attorney Steven Peiffle said that Farris identified a gap in the available knowledge of the effect Lane’s development would have, and it’s now up to Lane and the city planning staff to fill in that gap.

“Producing that kind of data over a wide area presents some logistical challenges, but presumably it can be done,” Peiffle said.

The Stillaguamish Flood Control District will now be able to introduce the Oso mudslide as evidence before the hearing examiner, attorney Henry Lippek said.

The upshot is that the river’s flooding models, which guided the hearing examiner’s decision, will now need to account for the mudslide, the effects of which are only starting to be understood.